UNITED STATES: WikiLeaks founder should face criminal charges in US

In the United States, the Obama Administration has been wringing its hands over the publication of US military and diplomatic cables on the internet site, WikiLeaks.

What is most disconcerting about the WikiLeaks disclosures of US government information, which have been going on for the past six months, is that the United States is either unable or unwilling to prosecute the perpetrators. It cannot be said that senior government officials are unaware of it: President Obama, Secretary of State Clinton and Defence Secretary Robert Gates have all deplored the leaks, but none of them has been willing to do anything about them.

The US Government has made no move to apprehend Julian Assange, who runs the WikiLeaks website, although some US Congressmen have called for the founder of WikiLeaks to be charged with "treason" or "terrorism".

This course of action would be misplaced, because the crime of treason can only be committed by a person against his own country, and publishing secret documents is certainly not terrorism, which involves acts or threats of violence against civilians to achieve ideological goals.

Mr Assange, an Australian national, published hundreds of thousands of US government documents given to him by a disgruntled US government employee. He has been arrested in Great Britain on European arrest warrants, relating to rape allegations made against him by two Swedish women.

Whatever happens to the Swedish charges, it is clear that those who obtained and published hundreds of thousands of secret US government documents on the WikiLeaks website, should face American courts over breaches of existing US criminal law.

The person believed to have stolen the documents was US Army Private First Class Bradley Manning. Manning has been charged under the US Espionage Act. The Espionage Act, first carried in 1917 and subsequently amended, has rarely been invoked. Its was originally intended to deal with actions which support America's enemies during wartime, interfere with military operations, promote insubordination or interfere with military recruitment - none of which apply in the current case.

More recently, it has been widened to include any disclosure of government information to persons not entitled to receive it. However, it also requires that the perpetrator believed it "could be used to the injury of the United States". Attempts to prove that a person was acting in bad faith are notoriously difficult to establish.

However, under US law, the crime of receiving stolen property is a state and federal offence. There can be no doubt that in taking possession of official government documents, and in publishing the documents, Assange knew that they had been stolen, and he should therefore be liable for the consequences.

A further consideration is that the published documents had been classified, and some were classified as "secret" or "top secret". Under US law, it is an offence to publish classified government documents, and a number of legal cases, including Gravel v. United States (1972), have made clear that those who publish such material are liable for prosecution.

In the United States, there are constitutional protections which apply to members of Congress, but these clearly do not apply to WikiLeaks or Mr Assange.

Assange has reportedly tried to protect himself by threatening that if he is arrested, more damaging US government documents will be released. If that is so, it is an almost textbook case of blackmail, which consists of threatening to reveal substantially true information about a person or government unless a demand made by the victim is met.

This is also an offence under the US criminal code.

A separate question arises in relation to the media outlets which have published WikiLeaks information. Although this is a grey area of the law, there are very strong protections given to the media under the US First Amendment, including a presumption of good faith, which arguably put the media in a different position from those who stole or published the documents.

Apart from the criminal actions associated with stealing and publishing US government documents, the WikiLeaks case raises questions about the secrecy of government documents.

In the computer age, when hundreds of thousands of documents can be stored on a $20 memory stick, and hundreds of thousands of documents can be posted on a web site, from where they can be accessed anywhere in the world, the difficulties faced by democratic governments in protecting secret documents are obvious.

One of the reasons why the WikiLeaks documents have had such an explosive impact is that they reveal that what governments say publicly is often the opposite of what they say privately.

The obvious conclusion is that governments and senior officials should act privately just as they do in public, to the extent possible.